Can journalists be prosecuted as spies?

ByDaniel SchorrMarch 10, 2006

WASHINGTON
— It's no secret that the White House is no fan of leaks. But, can a reporter who breaks some official secret be prosecuted for espionage? That question has arisen as the Bush administration, incensed over leaks such as the warrantless NSA wiretapping, looks for more ways to crack down.

The issue of invoking the Espionage Act of 1917 against journalists is not new. In 1976, the Justice Department considered whether I should be indicted under that statute for revealing some classified information contained in a House Committee report. In the end, I was told, the department dropped the idea when the CIA expressed fear that further classified information might be disclosed in a trial.

In 1986, CIA Director William Casey warned Washington Post editor Ben Bradley that he faced prosecution if the Post printed a story about the monitoring of Soviet underwater cables by American submarines. Casey cited a 1950 law which updated the 1917 Espionage Act to include electronic communications. Eventually, the story was broken by NBC and the Post lost its scoop.

It is not clear whether the World War I Espionage Act can be used against persons outside the government. It refers to "whoever" transmits information with reason to believe it will be used to the injury of the United States. The reach of that language is an unsettled question. In the past, prosecutors have preferred to use the contempt citation as in the Judith Miller case.

But, President Bush has called the NSA leak a "shameful act" that is "helping the enemy." That begins to sound like espionage-act language.

In a court filing last month, the Justice Department maintained that reporters can be prosecuted for espionage. CIA Director Porter Goss has said, "It is my aim and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information."

A reporter prosecuted for espionage? A new day in government-media relations may be dawning.